April 2019

Connections

SMACNA Mid-Atlantic Chapter

DC’s First Source Law 1

Sexual Harassment 2

Choose Bigger 3

Safety Survey / Events 4

Indemnity Provisions 5

Family Leave Act 6

Inside this issue:

SMACNA Mid-Atlantic Staff

Bernie Brill

Executive Director Ext: 101

Kyle Tibbs

Marketing & Communications

Manager Ext: 104

Kelly Maltagliati

Office Manager Ext. 100

Maureen White

Bookkeeper Ext: 102

(301) 446-0002 Info@smacnaatl.org www.smacnaatl.org

D.C.’s First Source Law Under Review

On February 27, Washington, D.C. Council Member Elissa Silverman conducted a day-

long public oversight hearing on the District of Columbia’s First Source Hiring Law. More

than 35 people representing different businesses,

religious institutions, and other entities testified

and responded to questions from Council

Member Silverman.

Bernie Brill testified representing both the

SMACNA Mid-Atlantic Chapter and the Alliance

for Construction Excellence (ACE). The purpose

of the meeting was to hear and learn from those

who are subject to these regulations.

Brill told Silverman of the challenges that sub-

contractors face when attempting to comply with

First Source’s onerous and complex reporting requirements. He also noted the problems

of dealing with direct and indirect labor costs, employment plans, disclosure of past

compliance, the heavy handiness and the threat of penalties from government along with

the stringent hiring laws.

However, the purpose of Brill’s testimony was to offer suggestions that would make First Source less onerous and more workable for contractors. One idea was to reward contractors who are in compliance with favorable tax incentives and/or be placed on a “preferred contractors” list for future work. Another recommendation was to simplify reporting requirements which would streamline the process and result in reduced administrative expenses.

Brill also proposed that the Department of Employment Services (DOES) appoint an

ombudsman. As some contractors may be fearful of retribution in voicing complaints, this

person would act as a go-between DOES and contractors in resolving problems. The final

recommendation was to reduce the percentage from 51 percent of workers to something

more reasonable and attainable such as 20 to 25 percent.

Following Brill’s formal five minute presentation, Silverman entered into a question and

answer period in which she asked him about the number of D.C. apprentices, location of

the training center, and entrance requirements to the program. This opened the door to a

brief discussion about the association’s “Choose Bigger” program, plant tours, school

visits, etc. which is being undertaken by the association.

Silverman announced that there will be a career fair on April 17th at the Arena Stage from

9 a.m. to 1 p.m.

Council Member Silverman (center)

presides over First Source hearing

2

Employer Reporting of Sexual Harassment

in Maryland

Author: Natasha M. Nazareth

Date: 02/25/2019

The new Maryland employer

survey for reporting sexual

harassment settlements is now

open on the website of the

Maryland Commission on Civil

Rights (MCCR).

Context Maryland was one of

the 32 state legislatures to consider #MeToo legislation in

the 2017-2018 legislative cycle. Across the country,

approaches to addressing workplace harassment include

restricting confidentiality agreements, restricting waivers of

future claims of sexual misconduct or retaliation, expanding

non-retaliation provisions, expanding grounds for

attorneys’ fees and other measures which are viewed as

encouraging employees to report to workplace issues,

promoting fair resolution of reports, and preventing repeat

harassers from evading accountability by being cloaked in

secrecy.

Maryland’s “Disclosing Sexual Harassment in the

Workplace Act of 2018” (HB 1596) addresses waivers of

future claims of sexual harassment or retaliation and

requires employers with 50 or more employers to report

certain settlements to the Maryland Commission on Civil

Rights. The law took effect October 1, 2018.

Maryland’s Reporting Requirement

Under the reporting provision, all employers with 50 or

more employees must file two electronic reports in the next

5 years. Employers will provide the employer’s contact

information and answers to questions drawn directly from

the Maryland legislation. Employers will enter:

(1) the number of settlements made by or on behalf of the

employer after an allegation of sexual harassment by an

employee;

(2) the number of times the employer has paid a settlement

to resolve a sexual harassment allegation against the same

employee over the past 10 years of employment; and

(3) the number of settlements made after an allegation of

sexual harassment that included a provision requiring both

parties to keep the terms of the settlement confidential.

(4) If an answer is provided to Question 2, the employer

will have to answer “Whether the employer took personnel

action against an employee who was the subject of a

settlement.”

Employer reporting will sunset on June 30, 2023. MCCR is

providing limited guidance about the reporting

requirement.

MCCR is charged with publishing the aggregate number of

paid sexual harassment settlements reported by employers

and making an individual employer responsible for its

number of paid sexual harassment settlements and making

it available for public inspection upon request. MCCR will

further provide the Governor, Senate and House with an

executive summary of randomly selected surveys, redacted

of any identifying information for specific employers.

Key takeaways for Maryland employers:

1. Educate your leadership, supervisors and employees.

2. Ascertain whether your business is a covered employer

(50 employees or more.)

3. Review document retention and collect reportable data

on settlements.

4. Submit data using the electronic survey.

Resolving sexual harassment complaints in the workplace

presents challenges which are increasingly complex as

American societal expectations and laws respond to the

#MeToo movement.

Natasha M. Nazareth is Of Counsel to the firm of McMillan Metro, P.C. in Potomac Maryland. She represents businesses and individuals in the areas of employment, corporate, and education law and litigation in Maryland, Washington DC, and North Carolina. Natasha can be reached at nnazareth@mcmillanmetro.com or 301-251-1180.

SMACNA Mid-Atlantic Chapter Presents a

Seminar on:

Sexual Harassment and HR Law

May 21, 2019

10 a.m.—12:00 Noon

Where: Chapter Conference Room

7833 Walker Drive, Greenbelt, MD

Speaker: Julie Reddig

Free for Members—Registration Required

The Department of Labor requires companies

sponsoring apprenticeship programs be

knowledgeable of hiring process reviews, trainings

and more! Register at: www.smacaatl.org

or call 301/446-0002 x 100.

3

SkillsUSA – Regionals

Choose Bigger Pre-Apprenticeship Launches

Choose Bigger Pre-Apprenticeship has launched! SMACNA Mid-Atlantic leveraged the Maryland Apprenticeship

Innovation Fund Grant to create a Choose Bigger Pre-Apprentice orientation program designed to create a stronger

pipeline for the Local 100 Apprenticeship program. Since the launch of the program, SMACNA

staff has canvassed area high schools to encourage high school seniors to apply for the program.

The five week program will begin on April 23rd with a presentation about communication by

SMACNA guest speaker Kevin Dougherty. Each student will receive training, test prep, interview

skills, sheet metal basics, multiple certifications, honors cords, a scholarship presentation, and

more! During the outreach period SMACNA received 22 applications to the program. The selected

participants will take the apprentice exam and meet with local contractors for job placement.

SMACNA approved 19 applicants to the Pre-Apprentice program. The 19 students selected

represent 5 counties, 6 schools, and multiple high school disciplines. Jesse Long of Chopticon

High School said “I’m really looking forward to the program” after being notified of his acceptance. Jesse is from

Mechanicsville, MD and will be making the hour long drive to the SMACNA office for 5 weeks to learn about the sheet

metal trade. Jesse hopes that his dedication to the program, no matter the distance, demonstrates to area contractors his

determination to be a hardworking apprentice within Local 100.

For more information about the pre-apprentice program, please contact the SMACNA Mid-Atlantic office at 301-446-0002.

SMACNA Mid-Atlantic participated in SkillsUSA regional competition for Region 5 of Maryland

(consisting of Montgomery and Prince George’s counties). The event was hosted at the brand new

Thomas Edison High School of Technology on February 28th. SkillsUSA Maryland boasts a statewide

membership of 6,000 students. These young men and women have started training for their chosen

career paths in high school. The competition challenges these students to compete within their selected

trade or career path against other high school students. Region 5 is one of only a few regions in

Maryland with a Sheet Metal category. SMACNA Mid-Atlantic was granted access to the competition floor and provided

insight to students about career paths within the sheet metal industry. Participating student Emily Rivas noted her

intentions to join the Local 100 Sheet Metal Apprenticeship next year, after high school graduation.

Sheet Metal Competition Results

1st– Darrin McCloud

2nd– Emily Rivas

3rd– Milton Veliz

*- All students attend Thomas Edison High School

4

Please Complete SMACNA’s 2019 Annual Safety Survey

SMACNA’s 2019 Safety Survey is now online and ready for you to complete with your safety numbers. Many SMACNA members have benefited from this valuable program by winning safety awards or using the safety data to

improve their safety and health cultures. Each year, SMACNA conducts this annual Safety Excellence Awards Program (SSEAP) to recognize members for their outstanding safety performance while collecting vital safety and health data. SMACNA also administers a survey program for Canadian member contractors. We now have two dynamic initiatives to recognize member safety excellence in both countries. All SMACNA members can access the online annual Safety Survey form from SMACNA’s webpage. Select “Browse by Topic” then “Safety & Health.” Choose “Safety Award: Surveys & Statistics.” On the page, choose “2019 SMACNA Safety Survey Now Open.”

All entries must be received by May 10 Your input is critical to the success of the program. Most information needed can be found in your company’s 2018 injury and illness records. Submitting your survey is quick, easy, and confidential. See SMACNA’s most recent Safety Statistics Profile 2018 on the Surveys and Statistics section of SMACNA’s Safety webpage at www.smacna.org/safety.

For more information, contact Mike McCullion, SMACNA’s director of market sectors and safety (mmccullion@smacna.org / (703) 995-4027).

Upcoming Events

April 10: Apprenticeship Conference

April 24: Kevin Dougherty Presents - Field Based Project

Management

May 7-9: CEA: SMACNA’s National Issues Conference-

Washington, DC

May 21: Sexual Harassment & HR Law presentation with

Julie Redding

June 6: SMACNA Mid-Atlantic Chesapeake Bay

Fishing Expedition

Oct 20-23: National Conference- Austin, TX

Nov 7: Mentoring Apprentices - Nic Bittle

To register or for more information please go to

www.smacnaatl.org

CEA National Issues Conference 2019

Be a part of the advocacy effort!

Join your colleagues and peers in Washington, DC for

two-and-a-half days of valuable educational sessions,

networking, social events, and lobbying meetings focused

on key SMACNA and CEA legislative issues.

When:

May 7-9, 2019

Where:

Hyatt Regency Washington on Capitol Hill

Registration:

Please register through SMACNA national at:

https://www.smacna.org/events-

education/registration/national-issues-conference

Or by calling (703) 803-2980

5

Indemnity Provisions:

What You Should Know

By Lane F. Kelman, Jonathan A. Cass, and

Jackson S. Nichols

Indemnity provisions are common features in

construction contracts. They typically require one party,

the indemnitor, to provide protection to another party

(e.g., “to

indemnify”) from

liability for losses

caused by the

indemnitor.

Typically, a general

contractor or

owner will require a contractor to indemnify them from

responsibility for claims for personal injury or property

damage that arise from the project. Many jurisdictions

are reluctant to enforce such provisions, however. In

D.C., the courts will generally enforce indemnity

provisions in construction contracts. Maryland and

Virginia, on the other hand, are more reluctant to

enforce such provisions in all scenarios.

Say you are a drywall subcontractor on a job for the

construction of a building, and you sign a subcontract

where you agree to the following:

The subcontractor shall promptly

indemnify and save and hold harmless

the General Contractor and the Owner

from any and all claims, liabilities and

expenses for property damage or

personal injury; including death, arising

out of or resulting from or in

connection with the execution of the

work provided for in this Agreement.

While working, one of your workers falls through an

unmarked hole in the building, sustains serious injuries,

and sues the GC and owner. Who is responsible to pay

for his injuries? Normally, a GC is responsible for

complying with all health and safety regulations and

ensuring the safety of a job site. But according to the

indemnity provision, you, the subcontractor, have

agreed to pay for any liability to the GC or the owner

arising from that worker’s injuries, including their

attorneys’ fees.

In fact, the same indemnification clause and fact pattern

described above were the subjects of a case called WM

Schlosser Co., Inc. v. Maryland Drywall Co., Inc., where the D.C.

Court of Appeals held the subcontractor responsible because

of the above indemnity provision. Maryland and Virginia,

however, would likely have reached a different outcome

because they have laws restricting the ability of a party to a

construction contract from receiving the benefit of an

indemnification provision (e.g., be protected) for their own

negligence.

Because indemnity provisions can carry serious financial

consequences for a company, it is vital to understand the

risks involved before agreeing to them. Insurance

requirements, subrogation clauses, and workers

compensation laws all interrelate with indemnity provisions.

These rights can differ from state to state, and it is

recommended to have legal counsel review any such

provisions to understand your risk.

Lane F. Kelman is a partner in the Construction Group at Cohen

Seglias Pallas Greenhall & Furman PC. He has an active and diverse

construction litigation practice, representing developers, general contractors

and trades in complex construction matters throughout the United States

and internationally. Lane can be reached at lkelman@cohenseglias.com

or 267.238.4728

Jonathan A. Cass is a partner at Cohen Seglias Pallas Greenhall

& Furman PC. As Chair of the firm’s Insurance Coverage & Risk

Management Group, Jonathan helps his clients evaluate and manage

their insured and uninsured business risks. Jonathan can be reached at

jcass@cohenseglias.com or 267.238.4736.

Jackson S. Nichols is an associate in the Construction Group at

Cohen Seglias Pallas Greenhall & Furman PC. In his practice,

Jackson advises general contractors, subcontractors, sureties, owners, and

other construction industry entities in navigating complex commercial

disputes that arise during projects. He can be reached at

jnichols@cohenseglias.com or 202.587.4756.

6

Big Changes Coming to D.C.’s Paid

Family Leave Law

In December 2016, the District of Columbia City Council

passed the D.C. Universal Paid Leave Amendment Act of

2016 (UPLAA).

It will guarantee certain periods of paid family and medical

leave to private-sector employees starting on July 1, 2020.

Payments will be funded by an additional 0.62 % employer

payroll tax that the city will collect from private-sector

employees starting on July 1, 2019.

Expanded Rights

The new UPLAA leave entitlement will apply to more

private-sector employees—and in more circumstances—

than the DCFMLA.

First, new employees will be entitled to

take paid family or medical leave in

circumstances in which they currently

have no entitlement to take even unpaid

leave.

Currently, to qualify for unpaid leave, an

employee must have worked for the

employer for at least one year preceding

the leave request. No such conditions apply to the

UPLAA. To be eligible under the UPLAA, an individual

must have been a covered employee "during some or all of

the 52 calendar weeks immediately preceding the

qualifying event."

So once the new law takes effect, for example, a new

employee could start a job and shortly thereafter go out on

paid UPLAA leave for six weeks to care for a seriously ill

family member. Intermittent days of paid leave are also an

option, meaning that the paid leave need not be taken on

consecutive workdays.

Second, the UPLAA provides paid-leave rights to part-

time employees, as long as they worked for the employer

at some point in the prior year. In contrast, the current

local law only provides a right to unpaid leave to

employees who have worked at least 1,000 hours during

the 12-month period prior to the request for family or

medical leave—the federal FLMA threshold is 1,250 hours

in a 12-month period.

Third, the UPLAA applies to all private-sector employers

regardless of size, except for those that are exempt from

taxes in the District of Columbia by federal law or treaty.

The UPLAA for the first time gives employees of small

businesses with fewer than 20 employees the right to take

leave for qualifying family and medical reasons.

A clause in the law suggests that employees who work for

an employee with fewer than 20 employees are not

entitled to "job protection" (i.e., restoration of their job)

when they return.

For Workers

On July 1, 2020, the District of Columbia will begin

administering paid leave benefits to eligible workers. In

the meantime, the Office of Paid Family Leave is working

to define how the benefit will be implemented.

In reviewing the draft rules, it seems that only Maryland

contractors whose employees are spending more than

50% of their time in the District of Columbia will be

required to pay the 0.62% tax for Uniform Paid Medical

Leave:

“Covered employee” – means an employee of a covered

employer:

(a) Who spends more than 50% of his or

her work time for that employer working

in the District of Columbia; or

(b) Whose employment for the covered

employer is based in the District of

Columbia and who regularly spends his

or her work time for the covered

employer in the District of Columbia,

and not more than 50% of his or her work time for that

covered employer in another jurisdiction. Work time spent

at another work site outside of the District of Columbia is

incidental in nature; is temporary or transitory in nature;

or consists of isolated transactions.

“Covered employer” – means:

(a) Any individual, partnership, general contractor,

subcontractor, association, corporation, business

trust, or any group of persons who directly or

indirectly or through an agent or any other person,

including through the services of a temporary services

or staffing agency or similar entity, employs or

exercises control over the wages, hours, or working

conditions of an employee and is required to pay

unemployment insurance on behalf of its employees

by section 3 of the District of Columbia

Unemployment Compensation Act, approved August

28, 1935 (49 Stat. 947; D.C. Official Code § 51-103);

provided, that the term “covered employer” shall not

include the United States, the District of Columbia, or

any employer that the District of Columbia is not

authorized to tax under federal law or treaty.

Please check with your attorney for further details and

compliance requirements. For more information please go to

https://does.dc.gov/page/district-columbia-paid-family-leave